LAKE MACQUARIE CITY COUNCIL v. BOTTOMLEY [1999] NSWCA 28

COUNSEL : C.R.C. Newlinds (Appellant) R.I. Goodridge (Respondent) Phillips Fox (Appellant) SOLICITORS : Firths (Respondent)

CATCHWORDS : HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what matters; HIGHWAYS - Negligence and nuisance - Injury to user of highways - Liability of highway authority - Nonfeasance and Misfeasance DECISION : Appeal allowed

2 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Downs DCJ on 27 January 1998 in proceedings which had been brought by the Respondent seeking to recover from the Appellant damages for injuries which the Respondent sustained when he fell while walking upon the grass verge in Railway Street, Dudley, one of the southern most suburbs of Newcastle, which suburb falls within the area of the City of Lake Macquarie; those injuries, so the Respondent alleged, were caused by the negligence of the Appellant. 3 In the Statement of Claim which was filed on the Respondent's behalf, it was alleged (inter alia): "2. On 2 June 1995 at about 9.30 a.m. the plaintiff was walking down the footpath of Railway Street, Dudley walking in a direction towards Ocean Street when he slipped on an irregular and sharply sloping portion of the footpath and sustained very serious injury to his right foot. 3. The said incident was caused by the negligence of the Defendant. Particulars of negligence: 3.1 Failed to exercise reasonable care for the safety of the plaintiff. 3.2 Exposed the plaintiff to a foreseeable risk of injury which could have been avoided by the exercise of reasonable care. 3.3 Failed to properly form and construct the footpath on Railway Street. 3.4. Failed to warn members such as the plaintiff of the presence of the sharp and abrupt drop on the footpath in Railway Street." 4 In a letter dated 26 March 1996 (BAB 136) the Respondent's solicitors, in answer to a request by the Appellant's solicitors for further and better particulars of the Statement of Claim, wrote (inter alia) as follows: "AS TO PARAGRAPH 3.1 2. See parts 3.3 and 3.4 of the Statement of Claim AS TO PARAGRAPH 3.2 3. That same foreseeable risk that was, unfortunately realised by the plaintiff in falling and injuring himself. 4. See 3.3 and 3.4 of the Statement of Claim. AS TO PARAGRAPH 3.3 5. The write (sic) would suggest that the footpath be constructed: (a) Out of concrete, asphalt or some other such suitable surface; (b) Flat and level; (c) In a matter (sic) that is conducive and safe to walking upon it. 6. The footpath was not constructed in a manner that complied with any of the criteria outlined in the answer to question 5." 5 Contrary to what appears to have been the understanding of the draftsman of the Statement of Claim and the writer of that letter - a number of whose other deficiencies were remarked upon by Downs DCJ in the course of his Judgment (RAB 12) - it is not the case that a road authority, such as the Appellant - is liable in damages to those who have suffered injuries in accidents said to have been caused by the failure of the road authority to construct footpaths on the grass verges of roads located within the area of their responsibility. 6 Despite the form of the Statement of Claim and the particulars which were supplied, the case which, at trial, the Respondent at first sought to establish - which case was based upon a report of 23 April 1997 by Mr. R. B. Barker, a professional engineer, (Ex. B - BAB 103-123) was, in substance, as follows (BAB 107-108): "5.1 It is my opinion that at the time that the kerb and gutter was constructed on the western side of Railway Street, the finished surface level of the ground and the footpath reserve was at the level currently present along the western side of the footpath reserve adjacent to the property boundary. It appears that the cut batters (sic) was excavated to create a transition slope from the back of the new kerb to the existing ground surface. ……… 5.3 The sharp change of surface slope has resulted in an exposed cut batter that has not been supported or effectively stabilised and which has fretted and eroded. In my opinion the fretting and erosion has resulted in the development of the uneven cut batter line that was observed at the site and which is evident in the attached photographs. 5.4 It is my opinion that at the time that the kerb and gutter was constructed, one or more of the following actions would have prevented the circumstances which lead (sic) to the accident: (i) Construction of a retaining or erosion preventing facing wall at the rear of the kerb to support the face of the steep cut batter (ii) Construction of a suitably graded concrete footpath on an alignment between the top of the cut batter and the western property boundary (iii) Excavation and grading of the ground surface within the footpath reserve to comply with Lake Macquarie City Council's design guidelines and the construction of a retaining wall along the western boundary to support the private property. 6.1 The excavation of the soil at the rear of the kerb and gutter that resulted in a steep unretained cut batter in the trafficable area of the footpath reserve created the circumstances that in my opinion lead (sic) to Wayne Bottomley's accident. 6.2 In my opinion the accident was caused by the collapse of the top of the water softened cut batter when loaded by Wayne Bottomley's foot as he walked along the footpath. There was evidence that the cut batter at the location of the accident had been actively eroding. 6.3 In my opinion the accident could have been avoided and the safety of the footpath reserve improved by the construction of one or more of the options listed in paragraph 5.4." 7 When, during the course of the trial, it became apparent that the Appellant had, during 1980, carried out work in Railway Street adjacent to the area where the Respondent had fallen, that work including the removal of the existing kerbing and guttering and its replacement, counsel for the Respondent sought to extend the Respondent's case so as to allege that, if the allegedly dangerous situation had not been earlier created by the Appellant, during the course of carrying out the works in question the Appellant created the allegedly dangerous situation by cutting or altering the angle of the existing cut of the batter thereby creating a dangerous situation. 8 The Judgment which Downs DCJ delivered - the findings of fact in which Judgment, I regret to say, are less well and less clearly stated than one would have wished - seems to proceed upon the following bases: 1. despite the histories which the Respondent had given on his admission to hospital and to his general medical practitioner, and despite the form of the Statement of Claim which was filed on his behalf, in both of which histories, and in the Statement of Claim, it was asserted that the Respondent had slipped on the grass verge, the position was that the soil on the edge of the cut batter, which soil had been weakened by erosion and by rain, gave way under the pressure of the Respondent' tread causing him to fall; 2. despite the view expressed by Mr. Barker that the batter was cut by the Defendant when the kerbing and guttering was replaced in 1980, the better view was that expressed by Mr. Clark - a highly experienced road engineer who gave evidence on behalf of the Appellant - that the batter was cut when the road was originally constructed; 3. the manner - or the angle at which - the batter was cut caused the top of the batter to be in an unsafe condition; 4. although there was no evidence as to the time at which the road was constructed, that was of no consequence because, on the evidence, the cutting of the batter was done either by the Appellant or its predecessor. 9 This statement of the bases upon which his Honour proceeded calls, immediately, for two comments, they being: 1. there is no finding by his Honour that the manner in which or the angle at which the batter was cut at the time when the road was originally constructed, did not accord with the standards of road construction of the day at the time when the construction was carried out; and 2. it is clear that his Honour proceeded upon the basis that, even if the road had not originally been constructed by the Appellant, the Appellant was to be regarded as liable for any negligent construction carried out by the person by whom, or at whose behest - seemingly the owner of the lands on which the road was constructed - the road was constructed. 10 In order that one might fully understand how these questions arose for consideration by his Honour and the evidence which was tendered at trial, it is necessary that I deal in rather more detail than might otherwise have been called for, some history of the matter. 11 As I have previously recorded, Dudley is a suburb - said to be one of the oldest suburbs - of Newcastle, situated to the South of Newcastle proper towards the Eastern coast and between Kahibah and Red Head. 12 Part of the land which now falls within the suburb of Dudley, formed part of an area of some 48 acres granted by the then Governor of the Colony to one Thomas Alcock in November 1874, the Crown Grant being originally Registered Volume 195 Folio 79 (BAB 302), the land being described in the Crown Grant as a "country lot". So far as the evidence which is before the Court permits one to judge, the land the subject of the Crown Grant did not, in 1874, or at any time prior to 1906 - the relevance of which date will later appear - fall within the boundaries of any form of local government area. 13 It is convenient to note, at this stage, that prior to 1 January 1907, when the material parts of the Local Government Act 1906 came into operation, there was no legislative restriction placed upon the opening up of new roads within the Colony, although both the Municipalities Act 1867 and the Municipalities Act 1897 contained provisions which sought to impose conditions upon the liability of a municipality to undertake the charge or management of new roads which might be opened within its area. 14 At common law, a public highway might be created by dedication and acceptance. Dedication presupposes any intention to dedicate, which intention may be presumed from open and unconcealed user as in the exercise of a public right and without interruption by the owner of the land, or it may be presumed from other circumstances, as, for example, where the land owner sells land fronting a road marked out by him on a plan of subdivision (see, for example, Attorney General v. The City Bank of Sydney [1] ; Permanent Trustee Company of New South Wales Limited v. Council of the Municipality of Campbelltown [2] , see also, Owen v. O'Connor; Owen v. John Norris Holdings Pty. Limited [3] ; Newington v. Windeyer [4] Bellevue Crescent Pty. Limited v. Marland Holdings Pty. Limited [5]

15 It is tolerably plain that, at some time prior to July 1891, Thomas Alcock or his successors in title had caused to be made a subdivision of part of the lands comprised in Certificate of Title Registered Volume 195 Folio 79, for, on 7 July 1891, Mr. Surveyor Wilkinson signed a plan of subdivision described as "Plan of a second subdivision of South Burwood at Redhead" of a further portion of the lands comprised in Certificate of Title Registered Volume 195 Folio 79, which plan of subdivision appears to have been lodged at the Land Titles Office on 18 July 1891 and subsequently became registered as Deposited Plan Registered Number 2657 ("DP 2657") (BAB 298-299). That Deposited Plan depicted a number of lots abutting six streets depicted in the plan of subdivision, five of which John Street, Frederick Street, Elizabeth Street, Thomas Street and Railway Street, ran from North to South joining what is now known as Ocean Street which runs in a roughly West to East direction towards the coast. The sixth street, Rose Street, running in a West to East direction between John Street and Railway Street. Each of those six streets was depicted as having a width of 66 feet, that is, the standard width of a residential street in this State. 16 Certificate of Title Registered Volume 195 Folio 79 bears a number of endorsements commencing in September 1891 recording transfers of lots in the subdivision represented in DP 2657, those endorsements including the transfer, registered in March 1892, relating to Lots 7 and 8, Section B on the Deposited Plan those lots being lots on the Western side of Railway Street in close proximity to the point at which the Respondent is said to have sustained his accident. The Certificate of Title contains further endorsements relating to transfers of other lots in the subdivision reflected by the Deposited Plan until January 1893 when that Certificate of Title was cancelled and a fresh Certificate of Title, Registered Volume 1100 Folio 249, was issued for the balance - the lots which had been the subject of transfers meantime appear - according to the endorsements appearing on the Certificate of Title - to have been made the subject of new Certificates of Title issued as each transfer was registered. 17 The material which is before the Court (see, for example, Exhibits A1-A4, C, 2, 6, Exhibit 9 - Photographs 1-10 ) make it tolerably plain that the land the subject of DP 2657 falls from North to South and from West to East so that the land near the intersection of Railway Street and Ocean Street reflects a complex slope embodying the fall from North to South and West to East. It is thus tolerably plain that if, in that general area of Railway Street, one wished to form a carriageway which did not reflect that complex slope but which fell in one direction only - that is from North to South towards Ocean Street - it would be necessary to cut into the land on the Western side of Railway Street so as to create, or at least to provide the foundation for, such a carriageway. In this regard one should note that the evidence of Mr. Clark - which evidence, as I have earlier noted, Downs DCJ preferred to that of Mr. Barker - was to the following effect (Exhibit 9B BAB 294-297): "Further to my Report dated 19 May 1997 I enclose a sketch showing the stages of construction which I consider have occurred to bring Railway Street to its present state of development. Those stages are: Stage 1 - The original ground surface before any road construction was commenced Stage 2 - The initial excavation to provide a road formation. When first excavated this formation may not have had any pavement material placed on it with vehicles travelling on the excavated formation surface. Progressively, pavement material would be spread on the formation. Sealing of that gradient material was probably not carried out when it was first spread but as a later improvement. Kerb and gutter would not be constructed at this time and surface water would be handled by table drains in the unpathed shoulders. Stage 3 - The road carriageway is brought up to modern suburban standards by the construction of kerb and gutter and the widening of the road pavement out to the new kerb and gutter. The pavement is sealed to its full extended width which would be selected to allow kerbside parking and one lane of traffic each way. Surplus excavation material to allow the construction of the kerb and gutter and pavement widening placed behind the kerb." 18 The sketch which Mr. Clark provided with his report depicting Stage 2 showed the cut batter and the Western side of the road reserve, the paved carriageway being some distance to the East of it. Exhibit 6 (BAB 272) which, it was suggested, depicted Frederick Street near its intersection with Rose Street, which portion of Frederick Street is not kerbed and guttered, the rainfall run-off falling into table, or shoulder, drains, reflects how a street might look in Stage 2. The sketch which Mr. Clark provided with his report to depict Stage 3, depicts the cut batter as before but for some back-filling at the toe behind the kerb. 19 Given the significant number of transfers of the lots in the subdivision depicted in DP 2657 - which lots were clearly intended to be residential lots - which took place within a short time after September 1891, it seems to me that it is legitimate to infer that, either prior to, or within a short time after, the registration of the Deposited Plan, the streets in the subdivision were formed at least to the stage referred to in the first paragraph of Mr. Clark's description of Stage 2. 20 There is no evidence to suggest that the formation of a roadway in the manner described by Mr. Clark in Stage 2, or the creation of a cut batter of the type described by Mr. Clark in Stage 2 and depicted by him in his accompanying sketch, and of the shape and size found to exist at the point of the accident, was not in accordance with the accepted standards of road making which existed at the time when the roadway was first formed to Stage 2. 21 In December 1905, his Excellency the then Governor, assented to the Local Government (Shires) Act 1905 ("the Shires Act"), the short title of which was (inter alia) "An Act for the local government of rural districts ….". The Act provided (inter alia): "5(1) The Governor by proclamation shall, within six months after the passing of this Act, divide the whole of the State, exclusive of the city of Sydney or of any existing municipality or of any area added in pursuance of this Act to any such municipality, or proposed to be so added, and exclusive of the western division, and exclusive of Lord Howe Island and the islands in Port Jackson, and such other islands as the Governor may, in his discretion, consider should be excluded, and exclusive of the Quarantine Station on the North Head of Port Jackson, into shires, and shall constitute under this Act and define the boundaries of each Shire, and shall give names to shires: ……… (4) The Council for the time being of any Shire shall, under the name given to it, be a body corporate with perpetual succession and a common seal. ……… 10. In the exercise by a council of the powers and duties conferred and imposed on it by or under this Act, the following provisions shall apply: (a) A council shall have the control and management of all public roads in its shire, and may use such roads and the soil thereof to any required depth in the exercise of any powers conferred on the council ……… (d) A council may within its shire open new public roads, divert any road, alter or increase the width of any public road, or cause the level or surface of any public road or footpath to be raised or lowered …" 22 By Proclamation published in the New South Wales Government Gazette of 7 March 1906, (BAB 151-153) his Excellency the then Governor constituted (inter alia) the Shire of Lake Macquarie. Thereafter, the initial meeting of the temporary Council of the Shire provided for in s.7 of the Act was held on 13 June 1906 (BAB 148-150). It appears to be common ground between the parties, first, that the land the subject of the subdivision depicted in DP Registered No. 2657 was within the boundaries of the Shire at the time of its being constituted; second, that the land remained within the boundaries of the Municipality of Lake Macquarie which was constituted on 1 January 1997; and, third, that it lies within the boundaries of the City of Lake Macquarie which was constituted on 7 September 1984. 23 On 28 December 1907, his Excellency the then Governor assented to the Local Government Act 1906 ("the 1906 Act"), the short title of which was "An Act to consolidate and amend the law relating to the Local Government of Shires and Municipalities". As I have previously recorded, the provisions of the 1906 Act came into operation on 1 January 1907. 24 For present purposes it is sufficient to note that the Act provided (inter alia): "75(1) A council shall have the control and management of all public roads in its area, and may use such roads and the soil thereof to any required depth in the exercise of any powers conferred on the Council. ……… 78(1) A council may within its area open new public roads, divert any road, alter or increase the width of any public road, or cause the level or surface of any public road or footpath to be raised or lowered. ……… 99(1) Every person, other than a person acting by authority of the council, who proposes in any area to open through or upon any land or any road in order that the same may be used as a public road or as a means of access to two or more parcels of land shall submit to the council a plan and specification of such road, and in the case of land in a village, town, urban area, or municipality, such plan and specification shall give the prescribed particulars as to surface drainage. Every such person shall apply in writing to the council to approve of such road. ……… 100(1) Every person who opens any such road as aforesaid shall, before he sells, leases or otherwise disposes of any land having frontage to the road, make the road and provide drainage according to the approved plan and specification to the satisfaction of the council, in accordance with the ordinances in that behalf, or give security to the satisfaction of the council that he will so make the road and provide drainage. ……… (3) If any person who so opens any such road, sells, leases, or otherwise disposes of any such land before the road and drainage have been made as aforesaid, or security given as aforesaid, the council may, by notice in writing, require such person to so make the road and drainage, or give security as aforesaid, within the period stated in the notice; and if such person failed to comply with such notice, the council may make such road and drainage and recover the costs thereof from such person in any court of competent jurisdiction. 101(1) If any road so opened as aforesaid has not been dedicated to the public, such road may be closed to the public and taken out of the care, control, and management of the council on notice in writing of such intention to so close the road being given to the clerk signed by all persons having an interest in the land upon or through which the road was opened. ………" 25 The Local Government Act 1919 ("the 1919 Act"), the provisions of which - with certain exceptions, came into operation on 1 January 1920, provided (inter alia): "232(1) Except where otherwise expressly provided, every public road and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act 1900. (2) The vesting in fee simple under this section shall be deemed to be not merely as regards so much of the soil below and of the air above as may be necessary for the ordinary use of a road as a road, but so as to confer on the council subject to the provisions of this Act the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee simple with full rights both as the soil below and as to the air above. (3) Unless otherwise expressly provided nothing to this section shall be deemed: (a) to affect any express or implied dedication to the public; ……… (d) to authorise the council to grant, demise, dispose of, or alienate the land or the soil or materials thereof; (e) to impose on the council any liability in respect of any rate under any Act or in respect of any dividing fence under the Dividing Fences Act 1902, or any liability in any case where the council would not be subject to the liability if this Act conferred on the council the care, control, and management of the road and did not vest the road in fee simple in the Council. ………" 26 The materials which are before the Court make it clear that, at some time - which, save that it must have been prior to 1980, does not appear from those materials - the carriageway of Railway Street was sealed and kerbing and guttering provided on both the Western and Eastern sides of the street. As I have previously recorded, the evidence of Mr. Clark, which evidence was accepted by Downs DCJ, was to the effect that, whenever it was that Railway Street was sealed and provided with kerbing and guttering, the works which effected that result did not include cutting the batter, or altering the angle of the cut batter which had been established when the carriageway was first formed. 27 As I have previously recorded, in 1980 the Appellant carried out works in Railway Street, which works involved the removal and replacement of some - but by no means all - of the then existing kerbing and guttering. Although the kerbing and guttering which was to be removed and replaced included kerbing and guttering in proximity to the site of the Respondent's accident, it did not include the kerbing and guttering for what appears to me to be the last twenty metres or so of Railway Street before its intersection with Ocean Street. The significance of this latter fact lies in the further fact that the photographs which are in evidence appear to indicate that the batter on the Western side of Railway Street adjacent to the kerbing and guttering which was not removed and replaced, is in the same line as, and at the same angle as, the batter adjacent to the point at which the Respondent is said to have had his accident and appears to be fretting. Those facts would seem to provide support for Mr. Clark's view that the batter was cut at the time when the carriageway was first formed, and would also support the conclusion reached by Downs DCJ that the batter was in no way affected by the works which were carried out in 1980. 28 The Respondent appears at the time of his accident to have lived at No. 37 Railway Street, which property appears (BAB 24-25; Ex. 2; BAB 142) to be three houses to the North of the point at which, so he has said, his accident occurred. His description of the accident when given in his evidence in chief (BAB 2-3) was as follows: "GOODRIDGE: Q. Tell us very briefly please, what occurred. A. I was going to the local gym at Gateshead. I was walking down the footpath or nature strip and I was walking along I glanced to have a look into the garage, there's an older fellow lives down from me and me and the fellow next door usually put his garbage bin in for him, so I had a look in to see if his bin was right and kept walking. As I proceeded towards Ocean Street, Dudley I put my foot down, taking a step and the ground, as I put the foot down, the right foot, the ground gave way and I just heard an almighty crack and ended up on my back with my foot-- Q. - Sorry, pause there for one moment, sir. You said the ground gave way, how much did the ground give way? A. Just a small amount. It had been raining the night before and the ground was damp. Q. When you say the ground gave way, is that a conclusion you've reached (sic) or something you observed or felt in some way? A. I felt it. I was walking up, well, on, like, an angle across and as I was on, well, the edge, as it were, because I was cutting across to, there's a tree in front. I was going at an angle across and as I've put me foot down the edge of the dirt or whatever you call it, batter, I just felt it give way and my foot stayed in the direction that I was going but my body, it just gave way and went sideways and my body, just, I come down on me back." (By way of explanation of some of this evidence, I record that the "older fellow" referred to by the Respondent appears to live in the last house facing Railway Street on its Western side, that is, the second house to the South of that in which the Respondent lived, and that the tree to which the Respondent referred is situated to the South of the Southern boundary of the home of the "older fellow" near the side boundary of a house on the Western side of Railway Street but fronting Ocean Street.) 29 It was on the basis of the material, the substance of which I have sought shortly to record above, that Downs DCJ found a verdict for the Respondent and entered Judgment for him in the sum of $64,800.00, by far the greater proportion of which sum represented general damages ($60,000.00) and interest thereon. 30 In his Judgment - the findings of fact in which, as I have earlier recorded, are less well and less clearly stated than one would have wished - Downs DCJ dealt with the issue of liability in the following way (AB 12-13): "The misfeasance relied upon is that at some time in the past when the roadway was either constructed, sealed or kerbed and guttered the defendant cut a batter and left it in such a state that with time it eroded and in June 1995 following rain the clay at the top of the batter slid or subsided underneath the weight of the plaintiff's foot. The experts, Mr. Barker for the plaintiff and Mr. Jackson-Clark (sic) an engineer for the defendant disagreed as to when the batter was cut. Mr. Barker considered it was cut by the defendant when the kerbing and guttering was replaced in or about 1980 whereas Mr. Clark was satisfied that it was cut when the road was originally constructed. I prefer the evidence of Mr. Clark but really it does not make any difference because on the evidence the cutting of the batter was also done by the defendant or its predecessor. Mr. Clark had experience over many years in the construction of roads in various parts of the world and his opinion was that the construction had taken place in three stages as is illustrated in his report which is exhibit 9A. The plan exhibit 7 for the replacement of the kerbing and guttering provided for work to be done approximately a half a metre away from the batter and this I consider fortifies the opinion of Mr. Clark. As the cut measured 70 degrees from the horizontal and was partly eroded Mr. Barker considered it was unsafe and Mr. Clark considered that anything beyond a natural angle of more than 50 or 60 degrees from the horizontal would be unsafe or unstable. In these circumstances particularly as both expert (sic) agree, I am satisfied that the work done by the council even though it was done many years ago caused the top of the batter to be in an unsafe condition as a result of which it subsided when the Plaintiff stepped on it and so caused him to fall and be injured. There was an allegation that the defendant breached a certain code. As this code was only adopted in 1990 it became irrelevant." 31 In the Notice of Appeal which was filed on its behalf, the Respondent took a number of grounds of appeal of which it is sufficient, for the purposes of this Judgment, to note the following: "His Honour erred ……… 5. in finding the Appellant guilty of misfeasance when his Honour found that there was no evidence as to when Railway Street was constructed. ……… 7. in finding the Appellant guilty of misfeasance for creation of the cut batter, in the following circumstances: · where His Honour accepted the Appellant's expert, Mr. Clark, that the cut batter was created when the road was originally constructed, and · where His Honour found that there was no evidence as to when Railway Street was originally constructed; 8. In failing to find that Railway Street was first constructed in the 1890s, before the Lake Macquarie Shire Council was first constituted in 1906. 9. In finding the Appellant guilty of misfeasance for creating the cut batter with a slope in excess of 50 or 60 degrees from the horizontal in the following circumstances: · where there was no evidence as to the date of construction of the original road; · where there was no evidence as to the standards or methods of construction other than from 1980;" 32 When the Respondent's Written Submissions - which were, in any event, filed out of time - were lodged with the Court on 19 February 1999, there was filed a Notice of Contention in which the Respondent contended: "1. His Honour should have found that the batter was cut by the Defendant when the kerbing and guttering was replaced in or after 1980. 2. Further, or in the alternative, his Honour erred in failing to give any or any adequate weight to the evidence of Mr. Barker and Exhibit 7, or failing to give any or any adequate reasons for not giving weight to this evidence." 33 However, during the course of submissions on the hearing of the appeal, counsel for the Respondent sought to submit that Ground 1 in the Notice of Contention was apt to permit him to argue, in addition, that Downs DCJ should have found that, even if the works carried out in 1980 did not include the cutting of the batter, or the alteration of the angle of the batter, those works "weakened the so-called cut batter at the top of the slope (ripple effect undermining)". Since counsel for the Appellant did not oppose the Respondent being given leave to raise the matters set out in paragraphs 1 and 2 of the Notice of Contention (T. 73-74) I would, for my part, be content to proceed upon the basis that the Respondent be treated as having been granted leave to file the Notice of Contention; however, as the Judgment which was delivered by Downs DCJ contains no indication - a fact which counsel for the Respondent conceded (T. 69) - that the question of "ripple effect undermining" was debated at trial, I am not prepared to proceed upon the basis that the Respondent be treated as having been given leave to raise that matter for determination on the appeal. 34 With respect to Downs DCJ it seems to me that his Honour erred in a number of respects and that, by reason thereof, the verdict which he found and the Judgment which he entered, in favour of the Respondent cannot stand. 35 By way of introduction, it is convenient to record the discussion of the law in this regard undertaken by Dixon J (as he then was) in Buckle v. Bayswater Road Board [6] where his Honour said supra [7] : "The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what road work it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority. It is not surprising that attempts to escape the application of this doctrine should be made and renewed from time to time on behalf of persons suffering personal injury through the defective condition of public highways. Striking illustrations are to be found in the facts of some of the cases in which such attempts have been defeated. In Cowley v. Newmarket Local Board ([1892] AC 345) the road authority had failed to reconstruct a dangerous footpath and had, on the contrary spread its surface. A ramp existed across the footpath into an adjoining owner's premises. It fell to a depth of eighteen inches below the path which was retained by a low wall. Thus pedestrians were confronted with a sheer drop in the footway of a foot and a half. The road authority gravelled the footpath for its whole width and otherwise left the danger. The House of Lords, affirming the Court of Appeal ((1890) 7 TLR 29) and Denman J ((1890) 6 TLR 321) decided that a pedestrian who fell into the trap by dark had no cause of action against the road authority." 36 However, a road authority's immunity from suit exists only in respect of liability for accidents caused by nonfeasance, and does not extend accidents caused by misfeasance. The distinction was dealt with by Dixon J in Buckle v. Bayswater Road Board in the following way [8] : "But while a road authority owes to members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorised acts when done by a road authority. But a road authority in doing them must take care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorised works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It is evident that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its power so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway. ………

The improper nature of the original act of the road authority must always be the foundation of the complaint against it. Cases in which but for continual subsequent safeguards the work actively done by the road authority would make the highway dangerous must be distinguished from the very different class of case in which the operations of the road authority put the highway in a condition perfectly proper and safe, but liable in the course of time through wear and tear and deterioration to become unsafe. Whenever an artificial road surface is provided, neglect to maintain it is likely to result in its destruction by wear and weather. Its last condition may be expected to be worse than its first. But these considerations do not throw upon the road authority which fails to maintain a road any civil liability for the consequences, although at the time of construction they might have been foreseen. If, judged according to the standards of the time and the circumstances then prevailing, the design and execution of the work were not improper or unsafe, the development of a defective or dangerous condition of the highway is to be attributed to the failure to maintain or repair, which involves no civil liability for particular damage. It cannot be regarded as a dangerous condition 'caused by', because necessarily resulting from, the original construction of the roadway." 37 It should, however, be noted that the mere fact that a road authority has done something to a road does not convert a case, which would otherwise be one of nonfeasance, into one of misfeasance, for the execution of superficial repairs, for example, does not attract liability, unless it has in fact increased the risk of accidents. That this is so is shown by the following passage from the Judgement of Latham CJ in Gorringe v. The Transport Commission (Tas) [9] : "In the second place, the plaintiff contended that in the present case there was misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v. Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage. In the Supreme Court and in this Court it was argued that the dip in the road demonstrated the need for radical repair of the culvert and that the Commission only made superficial repairs on the road surface from time to time. This course of action, it was said, was more than nonfeasance and amounted to misfeasance. But the very statement of the argument shows that such a complaint is a complaint that the Commission failed to exercise in full measure the power to repair the road which it possessed. Such a failure is only nonfeasance." 38 If, in order that it might be charged with misfeasance, a road authority must be shown to have been an active agent in negligently creating, or adding to, an unnecessary danger in the highway - including within the term "highway" not merely the carriageway but also the other areas - such as the grass verge in the present case - within what might be called the "road reserve" - then, as it seems to me, as a matter of logic, three consequences flow, they being: 1. if the evidence which is tendered to a Court does not disclose when, or by whom, or by which, the relevant work were carried out, the plaintiff's claim must, without more, fail for want of proof; 2. if it appears from the evidence tendered to the Court that the works in question were carried out prior to the road becoming vested in the road authority then, in the absence of express words in the Act pursuant to which the road became vested in the road authority, the road authority is not to be held liable for its predecessor's misfeasance ( Baxter v. Stockton Corporation [10] ; Florence v. Marrickville Municipal Council [11] ; Sisson v. North Sydney Municipal Council [12] ; 3. even if the evidence tendered to the Court establishes that the relevant works were carried out by the road authority, the road authority is not to be held liable unless it carried out the works without due care and skill for the safety of those who might come to use the road, it following that, if the works were carried out in accordance with the standards of the time and the circumstances then prevailing, the road authority is not to be held liable, either, by reason of the carrying out of the works, or, by reason of the fact that, as the result of the deterioration of the works and the road authority's failure to maintain or repair them, the works have become unsafe (see, for example, Buckle v. Bayswater Road Board [13] ; Hill v. Commissioner of Main Roads [14] ) 39 If the views which I have just expressed be - as I believe them to be - correct, then it follows: 1. (a) as there was no evidence before Downs DCJ as to when Railway Street was originally constructed, it was not open to his Honour - in the absence of evidence which justified him so inferring - to infer that Railway Street was initially constructed by the Council of the Shire of Lake Macquarie it following, that unless the evidence permitted him to draw that inference, the Respondent's claim should have been dismissed for want of proof; (b) the mere fact that, when the Shire was established, there was vested in it the care, control and management of any public road did not, in my view, justify the inference which Downs DCJ drew; on the contrary, the fact that DP 2657 was registered some fifteen years prior to that time and that the evidence would demonstrate that, even in the following two years, many of the lots in the subdivision had been transferred points, almost irresistibly, to the conclusion - which, in my view, Downs DCJ should have formed - that Railway Street was constructed, at least to the extent described in the first paragraph of Stage 2 dealt with by Mr. Clark in his report, by, or at the behest of, the subdivider, either, prior to, or, within a short time after, the registration of DP 2657; 2. if, as in my view he ought to have done, Downs DCJ had found that Railway Street was initially constructed prior to the establishment of the Shire - I have assumed that the steps which were taken subsequently to convert the Shire first into a municipality and, later, into a city, did not involve the dissolution of the original corporation which came into existence on the establishment of the Shire - then the Respondent's claim should, for that reason, if for no other, have been dismissed, as the Appellant, for the reason which I have earlier recorded, was not to be held liable for the work involved in the initial construction of the road; 3. even if, contrary to the views which I have earlier recorded, Downs DCJ were justified in inferring that it was the Appellant which initially constructed the road, then the Respondent's claim should still, in my view, have been dismissed, since: (a) as I have earlier pointed out there is no evidence which could establish that the works involved in the initial construction of the road were carried out negligently in the sense to which I have earlier referred - the mere fact that, in January 1998 when they gave evidence both Mr. Barker and Mr. Clark considered that the cut batter was unsafe establishes nothing as to the standards of the time when the road was initially constructed - the views of experts based upon current standards - as, for example, Mr. Barker's reliance upon the Appellant's design guidelines (see Exhibit B - BAB 107-108, 110-119) are irrelevant to the question of negligence at the time of construction unless it be demonstrated which it was not - that standards of construction have not changed meantime. (b) Downs DCJ having held, as, in my view, the evidence amply justified him in holding, that the works which were carried out in 1980 did not involve cutting the batter, or altering the existing angle of the cut batter, or otherwise affecting the cut batter, there was no evidence upon which his Honour could have held that, by reason of any work then carried out, the Appellant created a danger where one had not previously existed, or had increased the risk of injury to which pedestrians lawfully using the verge would otherwise have been exposed. 40 For these reasons I would propose the following Orders: 1. ORDER that the appeal be upheld. 2. ORDER that the verdict found and Judgment entered in the District Court be set aside and in lieu thereof that Judgment be entered in the proceedings in favour of the Appellant. 3. ORDER that the Respondent pay the Appellant's costs of the proceedings and of the appeal but, if qualified, have a Certificate under the Suitors Fund Act 1951.

41 GILES JA: Gratefully drawing on the reasons of Powell JA, I can state reasonably succinctly why I agree with the orders he proposes. 42 Downs DCJ was in error so far as he found that the Council constructed Railway Street. His Honour said that "as the only evidence before me is that Lake Macquarie Shire Council took control of the shire in 1906 I infer that this was the body which constructed Railway Street". The conclusion does not follow from the premise, and the evidence to which Powell JA has referred makes the proper inference that Railway Street was formed, by its initial excavation prior to 1906, with a cut batter as described in Mr Clark's Stage 2. This construction of Railway Street was by the sub-divider or by some unknown predecessor of the Council. 43 His Honour was in error so far as he held in favour of Mr Bottomley on the ground that the cutting of the batter was done by the Council's predecessor. Even if there was misfeasance by that entity the Council is not to be held liable for it: Florence v Marrickville Municipal Council (1959) 60 SR 562; Sisson v North Sydney Municipal Council (1966) 1 NSWR 580. 44 Some misfeasance of the Council after 1906 must therefore be established. 45 Railway Street was kerbed and guttered at some time after 1906 and before 1980. Downs DCJ had, or could find in their evidence, competing conclusions of Mr Barker and Mr Clark. The evidence of Mr Barker, at least on one reading, supported the opinion that the batter was cut when the street was first kerbed and guttered. The evidence of Mr Clark was that the batter cut at the time of the initial excavation of Railway Street was not altered at the time of the kerbing and guttering - all that happened was that there was some backfilling behind the kerb at the toe of the batter. His Honour preferred the evidence of Mr Clark and no reason has been shown to disturb that preference. Given that the initial excavation included a cut batter (see par 2 above), a finding that the batter was re-cut at the time of the kerbing and guttering can not be supported. On the contrary, regard to photographs showing the batter in an adjacent street without kerbing and guttering, and in Railway Street with kerbing and guttering constructed before 1980 and as part of the 1980 works, supports Mr Clark's evidence. His Honour was in error so far as he found that the batter was cut by the Council in the pre-1980 kerbing and guttering, and no relevant misfeasance in relation to the pre-1980 kerbing and guttering was established. 46 Replacement kerbing and guttering was constructed in 1980 in the part of Railway Street where Mr Bottomley fell. Downs DCJ had, or could find in their evidence, competing conclusions of Mr Barker and Mr Clark. The evidence of Mr Barker supported the opinion that the batter was altered in the 1980 works. The evidence of Mr Clark supported the opinion that the batter was not then altered. His Honour's preference for the evidence of Mr Clark applied also to that issue, and the photographs showing the batter in Railway Street with kerbing and guttering constructed before 1980 and as part of the 1980 works amply justifies it. No reason has been shown to find otherwise. Where the batter was not altered by the Council in the course of the 1980 works, there was no relevant misfeasance in relation to those works. 47 The foregoing disposes of the contention in Mr Bottomley's original notice of contention that his Honour should have found that the batter was "cut by the defendant when the kerbing and guttering was replaced in or after 1980". It was sought to amend to add the contention that his Honour should have found "that the works carried out in or after 1980 weakened the so called cut batter at the top of the slope (ripple effect undermining)". I am satisfied that no such case was mounted before Downs DCJ, and Mr Bottomley should not be permitted to mount it on appeal: Suttor v Gundowda Pty Limited (1950) 81 CLR 418; Coulton v Holcombe (1986) 162 CLR 1; Multicon Engineering Pty Limited v Federal Airports Corporation ( CA, 15 October 1997, unreported). In any event, the evidence did not even approach proving that excavation at the foot of the batter in the course of the 1980 works caused or contributed to a weakness at the top of the batter where Mr Bottomley fell. No relevant misfeasance in relation to the 1980 works was established. 48 No other occasion for misfeasance of the Council after 1906 was put forward, and misfeasance of the Council after 1906 has not been established. In accordance with the well established principles whereby a highway authority is liable only for misfeasance, there should have been judgment for the Council. ________________ End Notes 1. (1920) 20 SR 216, 221 2. (1960) 105 CLR 401 3. (1962-1963) 63 SR 1051 4. (1985) 3 NSWLR 555 5. (1988) 43 NSWLR 364). 6. (1936) 57 CLR 259 7. at 281-282 8. supra at 283-285) 9. (1950) 80 CLR 357, 363-4 10. [1959] 1 QB 441 11. (1959) 60 SR 562 12. [1966] 1 NSWR 580 13. supra at 284-185 per Dixon J (as he then was) 14. (1989) ATR 80-260 per Samuels JA at 68,784

Revision Reasons Hyperlinked End Notes added - 30/04/07

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.